Audit of the New York City
Department of Housing Preservation and
Development's Enforcement of the
Housing Maintenance Code

The City of New York
Office of the Comptroller
Bureau of Audit

Discussion of HPD's Response

In its formal response to this report, HPD took strong exception not just to the audit methodology, but to many of the findings cited in the report. HPD's Commissioner noted "three issues of concern with the audit methodology that undercut the validity of the findings." The three issues the Commissioner cited were: (1) the omission of heat violations from the scope of the audit, (2) the deletion of unverifiable violations from the sample of violations we tested, and (3) the audit's alleged failure to count violations corrected through litigation from our sample. The first two issues actually strengthen the validity of the findings; the third is untrue. In addition, HPD claimed its code enforcement efforts are more effective than is presented in the audit, based on the following claims:

if emergency conditions are found by inspectors, the violation is referred to HPD's Emergency Services Bureau (ESB) "which will make the necessary repairs if the owner does not comply";

that, although "Code Enforcement does not, at present, track all violations to removal" HPD "carefully monitors the status" of violations referred to its Emergency Services Bureau;

that the comparison of the violation correction rate achieved in NYC with the correction rate achieved by other cities is "incomplete and misleading" because of the disparities between NYC's housing stock and the housing stock of other cities, the differences in the cities' code enforcement processes, the "staggering" contrasts in the cities' workloads, and the auditors' alleged failure to consider various aspects of HPD's enforcement process when calculating NYC's correction rate of violations;

that, in regard to the large number of lead paint currently listed on HPD's database of violations, ". . . violations such as those covered in the audit are placed [issued] when there is no lead poisoned child under 7 years of age occupying the apartment. These are not the cases in which the City has experienced liability."

that, in regard to the drastic drop in inspections and reinspections conducted per thousand dollars budgeted to Borough Code Enforcement Offices for personnel, "The audit is misleading in simply claiming that inspectors are less productive without investigating the different nature of the inspections that are currently being performed."

The following sections discuss in detail the agency's response and our comments.

Omission of Violations for Lack of Heat and Hot Water from the Sample of Violations Tested.

Agency Response: HPD criticized the audit for excluding certain violations (lack of heat and hot water) from the sample of violations we tested. In its response, HPD stated that:

"First, although the auditors specifically limited the scope of the audit to enforcement of C violations, they omitted heat violations, one of the most serious and egregious violations. Heat violations receive intensive attention by HPD, and compliance is achieved in a very high percentage of the heat violations written. Therefore, the findings negatively and inaccurately skew our performance."

Auditors' Comments: We intentionally excluded heat violations from our analysis. This was clearly stated in the "Scope and Methodology" section of the report. We pointed out that HPD has mechanisms and procedures in place that help reduce the risk that tenants go without heat for long periods of time. We concluded, because heat violations are substantially different from other types of hazardous violations, that determining an overall correction-of-violation rate for both heat and non-heat violations would be both erroneous and misleading. For example, tens of violations may be issued for one broken boiler--one heat and one hot water violation for each apartment an inspector visits in a building. (An inspector usually visits several apartments when there is a lack of heat in a building.) When the boiler is repaired and the heat is restored, these violations are considered corrected. The violation correction rate for such heat violations would not be comparable to the correction rate for other immediately hazardous conditions, where each violation requires a separate action in order to be corrected. In addition, heat violations may be recurrent and intermittent, and, as such, determining whether particular violations were corrected from a series of violations issued over several months during fiscal year 1994 would not be comparable to non-recurrent violations, nor would it be feasible.

We also assert that the exclusion of heat violations does not negatively skew or affect the accuracy of our most significant finding. Our main finding is that "HPD Does Not Know Whether it is Effectively Enforcing the Housing Code"; indeed, HPD never reports its own measurement of the correction rate of violations--heat or non-heat--in its response to the audit. In addition, in reporting the results of the sample of violations we visited, we explicitly stated in the first sentence of the findings:

"Because, as previously stated, HPD does not measure its effectiveness in terms of getting violations corrected, we did such an exercise, restricting it to the most hazardous violations identified by HPD for conditions other than lack of heat and hot water." (emphasis added)

It should also be noted that the correction rates reported by other cities and listed in this report for comparison purposes were correction rates on violations for other than lack of heat and hot water.

Finally, given the mechanisms in place at HPD, heat violations probably have the highest correction rate of all of the types of violations that HPD identifies. However, heat violations represent only a portion of all violations written, and their inclusion would have been only one component of an overall correction rate; other components would conceivably have a much lower correction rate than the immediately hazardous violations in our sample. HPD does not criticize us for not including these violations in our audit sample. Specifically, developing an overall correction rate for all violations would include other violations that are not immediately hazardous--Class A and Class B violations. Class A and Class B violations receive very little enforcement (for example, Class A and Class B violations are not candidates for emergency repairs), and, as such, arguably have a much lower violation correction rate than the 57 percent correction rate we found for the sample of immediately hazardous violations we visited.

For discussion purposes here, we present the results of a frequency distribution of all violations identified by HPD inspectors during fiscal year 1994 that were listed on HPD's database of violations as of July 1994. Listed on the database were 14,081 heat violations; 177,245 Class A and B violations; and 38,036 immediately hazardous Class C violations. Even if 90 percent of the heat violations listed were eventually corrected, the violation correction rate for all Class C immediately hazardous violations would be only 66 percent (using a liberal estimate of 90 percent of the 14,081 heat violations, and, based on the results of our audit, 57 percent of the 38,036 Class C violations). Further, if the 177,245 Class A and Class B violations are included, and a 50 percent correction rate is assumed on these violations (which is very liberal, given that HPD does not aggressively enforce these violations), the overall correction rate would be 53 percent--lower than the correction rate we measured for the immediately hazardous maintenance and repair violations analyzed in the report.

Deletion of Certain Violations from the Sample We Tested and Our Measurement of HPD's Violation Correction Rate

Agency Response: In its response, HPD repeatedly challenged our measurement of the results of the sample of violations we tested. HPD expressed concern over our excluding 65 of the sampled violations and the portion of the total population of immediately hazardous violations these sample observations represented from our analysis. HPD stated:

"... we were able to identify and review two-thirds of 65 violations that the audit indicated could not be verified. As detailed later in this response, our records indicate that 89 percent of the C violations mentioned in this audit were corrected."

Later in the report, HPD stated that:

"The audit inaccurately claims that Code Enforcement is only 57 percent effective, when in fact based solely on the limited sample in the audit, our efforts are 89% effective, and when heat violations are included, Code Enforcement is an impressive 92% effective."

Auditors' Comments: Excluding the violations we could not verify strengthens the validity of the violation correction rate we calculated. As stated in the report, the violations contained inaccurate information, or could not be verified for a variety of reasons. In some cases, the violation-related information appeared to be incorrect; for example, the building numbers or apartment numbers did not exist. In other cases, we could not determine whether the violation was corrected because the apartment was vacant, the address was a vacant lot, the building was unsafe to enter, etc. Accordingly, we excluded these 65 violations from the calculation of the correction rate of violations--and we drew no conclusions about the 65 violations. Interestingly, while HPD claims to have identified two-thirds of the violations, it never presents the correction rate on these violations.

Subsequent to HPD's response, we asked an HPD inspector to show us the sites of 24 violations we had excluded from our sample because the building number or apartment number listed on the violation did not exist. In 22 out of the 24 instances, it would have been impossible for the auditors to identify the locations of the violations because the address listed on the violation differed from the building number on the exterior of the residential buildings where the violations were located. In fact, in order to identify the sites for the auditors, the HPD inspector who accompanied had to research additional information on the violation addresses. For example, initially we could not locate the building "2103 Newkirk Avenue"; therefore, we did not include a violation with this address as part of our sample. The inspector who accompanied us had to research the Multiple Dwelling Registration Number, the block and lot numbers, and the range of building numbers falling within the block and lot numbers before he was able to identify the building listed on the violation. In fact, 2103 Newkirk Avenue was not indicated anywhere outside or inside the building. According to the inspector, 2103 Newkirk Avenue is an "AKA" building, and is actually located at 635 East 21st Street. Based on the information on the violation record, the auditors had no way of knowing the AKA address of the building.

As a final note, HPD mentions that its records indicate that "89 percent of the C violations mentioned in this audit were corrected." As discussed later, the records HPD cites do not support its claim, and, ultimately, our field observations refuted this assertion. We would also like to point out that, of the 24 locations we visited with the inspector, we gained access to 10. Of these 10, we found that six violations had been corrected, and that four had not been corrected. This 60 percent violation correction rate is consistent with the 57 percent violation correction rate we measured for the sample of violations cited in the audit.

Violations Corrected through Litigation

Agency Response: HPD alleged that, in evaluating the effectiveness of HPD's code enforcement efforts and in comparing HPD's effectiveness to that of other cities, we did not include those violations that HPD's Litigation Bureau "addresses" each year. HPD stated:

"Finally, the audit fails to count as corrected the number of violations corrected through Litigation brought by HPD's Housing Litigation Bureau. Although the audit goes into some detail regarding the many adjudication mechanisms that other cities have to enforce their codes and raise the percentage of violations they correct, the audit inexplicably stops counting corrections for New York City at the Code inspection stage. In any discussion of Code Enforcement, it is imperative to consider the entire system, and while HLB addresses a small percentage of violations that are written, it does address over 50,000 violations per year and is, in fact, a critical mechanism for ensuring correction."

Auditors' Comments: HPD is mistaken. First, the violation correction rates reported by other cities were correction rates prior to litigation. Second, we selected the sample of violations from the population of all immediately hazardous maintenance and repair conditions (other than lack of heat and hot water) on HPD's database as of July 1994. The violations were, on average, a year old at the time of our visit. As such, HPD had ample time to pursue litigation for the uncorrected violations.

In addition, throughout the report we discuss the adjudication mechanisms available in New York City, from the background to the conclusions. For example, we note that "HPD reported in the Mayor's Management Report that a total of 342,000 violations were removed--284,000 violations through its Division of Code Enforcement and 58,000 through its Litigation Bureau." A major point of our report was that "removal of a violation does not necessarily mean that the violation has been corrected." Interestingly enough, in its response, HPD indicated that its Litigation Bureau "addresses" a number of violations per year, but it did not say whether these violations had been corrected or not. We should also add that most of these violations were "addressed" not because HPD initiated litigation, but because tenants themselves initiated litigation against their landlords.

In addition to the above three issues of concern about the audit methodology, HPD claims its code enforcement efforts are more effective than presented in the audit based on a several factors, discussed in the following sections.

HPD's Handling of Emergency Conditions

Agency Response: In its response, HPD claims that if emergency conditions are found by inspectors, the violation is referred to HPD's Emergency Services Bureau (ESB) "which will make the necessary repairs if the owner does not comply." HPD stated that:

"Contrary to the general conclusion of the audit, HPD's Division of Code Enforcement ensures correction of conditions for the overwhelming majority of violations that are written for emergency conditions. While the Central Complaint Bureau continues to take complaints for all types of violations of the Housing Maintenance Code, since 1991 when the State drastically reduced funding for inspectorial staff, our mission has necessarily shifted to addressing the most egregious violations. Although our response to non-emergency complaints is limited to sending the owner a notice of a tenant's complaint, an emergency condition triggers an extremely aggressive response which we believe is unparalleled in the nation."

In addition, regarding the enforcement of C violations, HPD stated:

"Most C violations are emergency conditions. An emergency complaint to the Central Complaint Bureau triggers an inspection. If an emergency condition is found, not only will a violation be written and sent to the owner, a referral is made to the Emergency Services Bureau (ESB), which will make the necessary repairs if the owner does not comply. The cost of the repair work will be billed to the owner or collected as tax liens. We spend approximately $8 million annually on this service."

"ESB is a very efficient method of addressing emergency conditions. We measure overall success of ESB in terms of owner contact, owner compliance, tenant verification, and when all else fails, our ability to complete an emergency repair. As the enforcer of the correction of immediately hazardous conditions, ESB's performance meets that of the other cities listed in this audit and, in terms of scope, vastly outperforms them."

Auditors' Comments: The sample of violations we visited consisted of immediately hazardous violations, and, according to HPD's records, almost all of them were referred by HPD's Division of Code Enforcement to HPD's Emergency Services Bureau. However, 43 percent of these violations had not been corrected. We believe that, based on the lack of enforcement for non-emergency violations (A and B violations), HPD's overall correction rate would likely be significantly less. Secondly, we agree that HPD's emergency repair program is larger in scope than that of any of the cities we contacted. However, as noted in the report, even though the cities we contacted do not have as extensive an emergency repair program as New York City, they all reported higher correction rates of violations. In addition, based on data HPD reports in the Mayor's Management Report, HPD issues more work orders than it completes every year. In fiscal year 1994, HPD issued 26,634 work orders; it completed only 14,210 (53 percent). Clearly, HPD cannot rely on the Emergency Services Bureau to correct any significant portion of HPD's citywide inventory of violations.

HPD's Performance Measurement System

"Code Enforcement does not, at present, track all violations to removal. Continual reinspection as suggested by the auditors would not address the fundamental concern of getting violations corrected. Where we have a remedial program such as ESB, we carefully monitor violation status. The correction of serious violations is a much more practical programmatic indicator than the formal removal of violations from the HDVI database. Moreover, the auditors should not assume that because a violation is still on the record it has not been corrected. In fact, when landlords fail to correct an emergency condition and we do the repair ourselves through ERP, those violations currently remain on the record. This is because current statutes provide only two ways violations can be removed:

pursuant to statute, a building owner certifies that the violation has been corrected within the prescribed time period, which is then confirmed through an inspection or is deemed corrected 70 days after certification without inspection. Tenants are advised of and can challenge any alleged correction.

a building owner submits a formal Dismissal Request ($300/building) indicating corrections made, which are then confirmed through an inspection."

Auditors' Comments: We agree that reinspections alone will not result in corrections of violations, nor did we suggest they would. Until HPD monitors the outcome of the violations it issues by reinspecting all C violations and representative samples of A and B violations, it will not know how effective its code enforcement efforts are, and it will waste inspection resources. In fact, one of our findings (which HPD did not challenge) is that "inspectors inspect the same condition repeatedly, and that they issue multiple NOVs for the same uncorrected conditions." Under HPD's current performance monitoring system, this inefficient, ineffective use of resources cannot be properly identified; consequently, it cannot be addressed by policy makers. Furthermore, the fact that HPD claims unsubstantiated, hypothetical correction rates (that are in stark contrast to what we found through actual observation of conditions and interviews of tenants) proves the need for HPD to develop a mechanism to monitor its own performance.

HPD criticized us for assuming "that because a violation is still on the record it has not been corrected." We believe that no one can assume anything about HPD's data because, as we noted in the report, violations are removed from HPD's database without being corrected, and violations that are corrected stay on HPD's database. We are not making any assumptions. Our conclusions are based on our own observations of the conditions cited.

HPD says that by statute there are only two ways violations can be removed. It then describes the rules governing the Certification Program and the Dismissal Request Program. HPD is playing with words here: it is true that the statute defines two circumstances under which a violation must be removed. But that does not mean that removal for other reasons is prohibited. For example, when a building is demolished, there is no statute that says the violations that were listed for that building should be removed from HPD's database. However, violations are removed from HPD's database when this occurs. Additionally, there is no statute that requires the removal of violations after repairs are made by HPD's Emergency Repair Program, but this is done too, according to what the Chief Inspector for Manhattan told us. (HPD claims in its response that it does not remove such violations.) The whole point of HPD's claims as to what violations can or cannot be removed from the database is that HPD is trying to show why the "auditors should not assume that because a violation is still on the record it has not been corrected." HPD's argument may make sense, but its premises are patently false and totally misleading. Nowhere in the audit does it say that the auditors made any such assumption. In fact, the whole focus of the audit was to objectively determine, without any a priori assumption, what portion of the violations in HPD's database was corrected and what portion was not.

Comparison of HPD's Code Enforcement Results to Those of Other Cities

Agency Response: HPD claims that our comparison between NYC's violation correction rate and the correction rates achieved by other cities is "incomplete and misleading" because of the disparities between NYC's housing stock and the housing stock of other cities, the differences in the cities' code enforcement processes, the "staggering" contrasts in the cities' workloads, and the auditors' alleged failure to consider various aspects of HPD's enforcement process when calculating NYC's correction rate of violations. HPD stated:

"The auditors go to great lengths to compare New York City's Code Enforcement with other cities' programs. These comparisons are incomplete and misleading. Below is a summary of the disparities between four of the cities with which New York City is compared in the audit. Individuals identified by the auditors as their source of information for the other cities did not return our calls.

Cities

Rental Unitnumberpercentage

Vacancy Rate

Complaints Rec'dFY95

Violations Issued FY95

Adjudication Component

Emergency Repair Program

Baltimore

153,63115%

8%

25,000

20,035

Yes

Limited

Chicago

663,67959%

10%

N/A

N/A

Yes

No

Pittsburgh

73,28443%

N/A

12,920

7,043

Yes

No

Phil.

253,99638%

10%

18,978

41,052

Yes

Limited

NYC

2,047,01769%

3%

75,440

298,000

No

Comprehensive

"The comparison of New York City's Code Enforcement efforts with other cities is flawed because it fails to consider a number of critical issues, including the disproportionate number of rental units to owner occupied units, the low vacancy rate, the number of complaints received, and the number of violations issued."

HPD also stated that we did not include the violations corrected as a result of litigation, either by HPD or by the tenants themselves:

"Moreover, the violation correction rate of the other cities' code enforcement programs included the results of the legal enforcement efforts of that city. However, in the case of New York City, the equivalent enforcement effort (Housing Litigation Bureau) was omitted. The result is a meaningless comparison."

and,

"The auditors also completely ignore the violation correction that is obtained by tenants in private actions in the Housing Court. HPD is often a party to such litigation. Code Enforcement devotes substantial resources to identifying violations in the context of a nonpayment proceeding or tenant-initiated Housing Court action where there is a likelihood that they will be corrected."

HPD concludes its criticism of the comparison by stating:

"The differences in code enforcement processes in addition to the volume of New York City's workload and its lack of an administrative adjudication component make it difficult to compare effectiveness among other cities. However, like the other cities, Code Enforcement does track immediately hazardous violations through its Emergency Services Bureau (ESB) and can directly address them through the Emergency Repair Program (ERP). And unlike other cities, HPD's ERP program addresses all emergency conditions (e.g. cascading water, lead paint, sewage back-up, falling ceilings, fire escapes) by repair. In contrast, other cities with emergency repair programs provide for emergency boiler installations at best, but rely almost exclusively on demolition of failed buildings rather than addressing emergencies that owners fail to correct. Simply stated, no other city contacted has as comprehensive a violation correction program as New York City."

Auditors' Comments: We agree that no two cities are exactly alike. But this does not make a comparison of different cities' correction rates of violations "flawed." We found through our comparison that every city except New York follows up on the violations it issues to determine whether violations have been corrected. In addition, we found that New York's code enforcement efforts are less effective than other cities. The cities we surveyed reported higher violation correction rates than the correction rate we measured by visiting a sample of violations. HPD's table of information does not refute this.

It is untrue, as HPD alleges, that the violation correction rates reported by other cities were correction rates prior to litigation. The other cities' violation correction rates mentioned in the audit report did not include the results of legal enforcement efforts of those cities.

The violations in our sample were identified by HPD inspectors an average of one year prior to our visits to the premises where the violations were located. Thus, both tenants and HPD had ample time to pursue cases litigation in Housing Court to get these violations corrected. In addition, in the background of the report we highlight the importance of tenant initiated actions when we state:

"... the litigation process--both HPD-initiated actions and tenant-initiated cases--accounted for 58,019 violations removed in fiscal year 1994. An HPD official stated that, although the exact breakdown is not monitored, the majority of violations removed are the result of tenant-initiated actions."

Finally, one of our recommendations is that HPD should inform tenants of their right to take their landlords to Housing Court when their landlords fail to correct the violations. In no way does the audit "completely ignore the violation correction that is obtained by tenants in private actions in the Housing Court."

All code enforcement processes begin with the issuance of a violation, which is ultimately corrected or not. We found that, in New York City, only 57 percent of a statistical sample of immediately hazardous violations had been corrected one year, on average, after the violations had been identified by HPD inspectors. By statute, these violations should have been corrected within 24 hours. Almost all of the violations in our sample were referred to HPD's Emergency Services Bureau. Despite HPD's claim that the Emergency Repair Program is more comprehensive than that of the cities we contacted, the other cities we contacted reported much higher violation correction rates, ranging from 85 percent to 92 percent.

Agency Response: HPD further stated that:

"The disparity in workload between New York City and other cities is such that overall effectiveness is difficult to compare; the audit highlights a violation correction percentage rate of 85% for Pittsburgh without indicating that the number of violations issued for FY94 was only 7,043 as compared to 298,000 violations issued by NYC Code Inspectors. The difference in volume between New York City and the other cities studied is staggering: New York City's Central Complaint Bureau received and processed 75,440 non-heat emergency complaints in FY 94 while Baltimore received 25,000, Philadelphia received 18,978, and Pittsburgh received 12,920. The audit also fails to mention that New York City undertakes actions that other cities do not. For example, Central Complaint staff notify all owners/managing agents that a specific complaint has been made. The auditors completely failed to consider the number of corrections that result from notification."

Auditors' Comments: HPD claims that, because of the differing workloads among cities, the effectiveness of New York's code enforcement efforts is not comparable to that of other cities. First, while we agree that New York is larger than any of the cities we surveyed, we do not agree that this precludes a comparison of the effectiveness of code enforcement efforts. HPD confuses the absolute number of activities it performs with the outcome of these activities. In evaluating the effectiveness of a program, the number of violations issued is not the most important indicator; rather, it is the percentage of violations ultimately corrected that indicates the outcome of code enforcement efforts. And, while both indicators are important, one without the other is meaningless.

Comparisons of workload are meaningless unless resources are also compared. Although HPD highlights the difference in workload among cities, HPD is silent on the differing levels of resources each city devotes to code enforcement efforts. While New York issues more violations than any other city, it also has more inspectors than any other city. For example, NYC has nearly three times as many inspectors as Chicago and nearly five times as many inspectors as Philadelphia. Of note, as well, is the fact that inspectors in other cities perform more inspections per day than HPD's inspectors, as shown in the chart on the following page.

Chart 4Housing Code Enforcement Inspections in U.S. CitiesNumber of Inspections Per Inspector Per Day

Baltimore

13

Chicago

14

Philadelphia

10

Pittsburgh

12

New York

7

Agency Response: HPD further stated that:

"Chicago's 92 percent correction rate does not appear to consider that Chicago severely restricts the number of violations that are written. Inspections are conducted by Building Department inspectors who are dispatched by trade expertise. If a complaint is about wiring, an electrical inspector is sent who only looks and writes violations concerning the electrical system. This method functions to limit violations to a very low level."

We discussed some of the differences between cities' code enforcement processes in the report. The points we made in the audit are that other cities determine whether violations have been corrected, and that other cities report higher correction rates on violations. Chicago, like New York, has a complaint-driven system, with inspectors sent to buildings in response to tenant complaints. The fact that Chicago allocates its inspection workload by the expertise of an inspector does not negate our findings.

HPD's Violation Correction Rate

Agency Response: Regarding the measurement of effectiveness we measured for the audit, HPD stated that:

"The audit inaccurately claims that Code Enforcement is only 57 percent effective, when in fact based solely on the limited sample in the audit, our efforts are 89% effective, and when heat violations are included, Code Enforcement is an impressive 92% effective."

Auditors' Comments: Our field observations clearly disprove HPD's assertions. We found that only 57 percent of a statistical sample of immediately hazardous maintenance and repair violations were corrected one year after these violations had been identified by HPD inspectors. According to the Administrative Code, such violations should have been corrected within 24 hours. Our analysis indicates that if heat violations are included (assuming that a liberal 90 percent of heat violations are corrected), the correction rate for all Class C violations increases to about 66 percent--not 92 percent. In addition, if less than immediately hazardous Class A and Class B violations are included (assuming a liberal correction rate of 50 percent for such types of violations), the overall correction rate would actually decrease, to an estimated 53 percent for all types of violations.

We also find it ironic that HPD, after arguing why its efforts are not comparable to those of other cities (because these cities have legal mechanisms available that New York does not, or because other cities have much smaller workloads, for example) would claim a violation correction rate of 92 percent, which is the highest correction rate reported by the cities listed in Chart 3 (page 17). If HPD's alleged figures are true, we suggest it reconsider our recommendation #1 (that it rejected) and put into place measuring mechanisms geared toward reporting actual correction rates.

Agency Response: In its response, HPD stated that:

"The audit inexplicably excluded heat emergencies, which have the highest correction rate. Also, the audit failed to reflect landlord certified violation corrections, despite the acknowledgement that at least 73 percent of owner certifications are valid. In addition, after we notify owners of complaints, many landlords correct them without certifying to us; we can arguably claim an even higher correction rate. It is important to point out that voluntary compliance is the most effective method of correction."

Auditors' Comments: First, we have clearly explained our reasons for excluding heat violations, both in the report and earlier in this section. Second, only violations which were certified as corrected by owners after the required due date were included in our sample.[1] These certifications are clearly discussed on page 22 of this report.

Agency Response: HPD stated in its response that:

"From a sample of 365 violations, the audit summarizes that 43 percent of the conditions remain uncorrected. That would seem to indicate that 157 violations were outstanding, yet the attachment to the audit listed only 89 violations for our review and research. Therefore we have not been able to identify or determine the validity of the remaining 68."

Auditors' Comments: Although we attempted to determine whether 430 violations had been corrected, we had to exclude 65 violations from the sample because, as explained earlier, these violations contained unverifiable, inaccurate or duplicate information, the addresses cited not be located, etc. We visited the buildings cited in the remaining 365 violations. For 207 of these violations, we gained access to the buildings and apartments to determine whether or not the violations had been corrected. Eighty-nine violations (43 percent) had not been corrected (these are the violations appended to the report and referred to by HPD); 118 (57 percent) had been corrected.

Agency Response: HPD faulted us for not being able to locate certain addresses listed on the violations. HPD stated that:

"As mentioned in the introduction, the audit indicates that 65 of the sample 430 violations could not be found by the auditors, yet two-thirds of them were easily located by our inspectors. Additionally, of the 89 violations listed in the audit that the auditors claimed were uncorrected, we found that many have been addressed. For instance, the audit cites a missing railing at 432 West 135th Street, yet this railing was installed by HPD contractors and is easily visible since it is located outside the building. These inconsistencies raise the possibility that the auditors were confused about the location of the violations and in fact photographed and evaluated locations that were not the subject of the original violations."

Auditors' Comments: Subsequent to our receipt of HPD's response, we asked an HPD inspector to locate the buildings where there were 24 violations from among the 65 we dropped from our sample. In 22 of the 24 instances, the HPD inspector would not have been able to locate the buildings without researching more information than was listed on the violation (e.g., Multiple Dwelling Registration Numbers in addition to block and lot numbers, "AKA" addresses, etc.) Further, we gained access to 10 of the 24 violation sites and determined that six violations had been corrected, and that four had not been corrected. This is a violation correction rate consistent with the rate we calculated using a statistical sample.

HPD is confused about the addresses that were a part of our sample. HPD criticized us for not noticing an easily visible railing installed by HPD contractors at 432 West 135th Street. That address was not part of our sample, and it was not cited in the report.

Agency Response: HPD, in its response, stated that:

"Moreover, reliance on reviewing any list of previously-issued violations such as the one in the audit indicates a fundamental lack of recognition that building conditions are not static but change over time. That a leaky pipe or peeling paint condition has been corrected does not mean that it will not recur. To assume that evidence of a current repair need means it has never been addressed ignores reality. One overflowing bathtub can quickly undo what had been corrected the day before."

Auditors' Comments: As noted in the report, it appeared that either HPD or the owner had done some work for a number of violations in our sample. However, if the tenants complained that the repair had not been done properly, and if the auditors were able to observe that the condition had not been substantially repaired or had recurred, we considered the violation not to have been corrected.

Agency Response: HPD stated that:

"After an extensive, comprehensive, and exhaustive analysis of the 89 allegedly uncorrected violations, we have determined that 67 (75 %) were actually corrected at one time either by building owners or HPD contractors or crews, or were referred to the Department of Health for correction. Since we were unable to evaluate the condition of the 68 not listed, applying the same 75 % correction rate to that group brings the total correction rate of your sample to 325 or 89%."

Auditors' Comments: We found that 43 percent of the violations in our sample had not been corrected. We based our results on physical observations of the premises, as well as on discussions with tenants. In some instances, tenants told us that violations still existed, although some work had been done to correct the problems. Ultimately, the auditors made a determination as to whether, at the time of their visit, the violations had been corrected. Where possible, a photograph was taken and reproduced in Appendix 3 of this report. In contrast, HPD's arguments are based on their reviews of documents generated from their own computer systems, rather than actual independent physical observations, which formed the basis of our conclusions. In fact, based on our observations, the information contained in these documents is inaccurate, insufficient, or refers to conditions that were not related to the uncorrected violations in our sample.

Specifically, for 16 violations of the 67 discussed in its response, HPD claimed that HPD or its contractor had completed the repair of the violation cited in the report as not being corrected. In some of these cases, HPD mistakenly referred to conditions that were not in our sample. For example, HPD gave us a photocopy of a work order for lead abatement work in the bedroom of an apartment at 406 West 46th Street, Manhattan. However, the violation in our sample was for peeling lead paint in the apartment hallway, not the bedroom. Similarly, HPD gave us a photocopy of a work order for lead abatement work in the bedroom and bathroom of an apartment at 1460 Sterling Place, Brooklyn. However, the violation in our sample was for a peeling lead paint condition in the apartment's hallway, not the bedroom or the bathroom. In another example, HPD gave us a photocopy of a work order for the replacement of the upper and lower window panes in a southeast room of an apartment at 2172A Fulton Street; however, the violation in our sample was for a missing upper pane in the kitchen window, not the southeast room.

For other violations, HPD provided us with computer generated "ER2 Forms" as support for their claim that the violation was corrected. For example, HPD said that one violation--a leak from a kitchen ceiling--had been corrected at 450 Madison Street in Brooklyn. According to HPD's ER2 Form, a repair costing $2,600 was done on June 17, 1994. However, the violation still clearly existed when the auditors visited the premises in February 1995, and is depicted in photographs 25, 26, and 27 in Appendix 3. In a similar case, HPD said its records indicated that a repair costing $1,650 had been done for a plumbing problem at 39 Granite Street, Brooklyn in April 1994. The auditors found that the violation still existed as of February 1994, as shown in photograph 23 of Appendix 3. We found similar problems in the remaining 11 cases and therefore concluded that the documentation HPD provided was not evidence that we had made an error when we observed the uncorrected violations.

For 11 violations of the 67 discussed by HPD in its response, HPD claimed its records indicated that an owner had promised to make a repair, and that the repair was verified by a tenant. However, we believe that the documentation HPD provided was not sufficient proof that we erred in concluding that these violations had not been corrected. For example, HPD claimed that a violation--peeling lead paint--had been corrected at 1120 Bryant Avenue in the Bronx. The documentation HPD provided to us indicated that while some work may have done at the apartment, the peeling lead paint violation had not been corrected. In fact, in its response, HPD actually sent us a note by an HPD inspector that said "tenant stated no lead paint abatement work done by contractor." Furthermore, when we visited the apartment, the tenant told us that the peeling lead paint had not been corrected. Photograph 18 in Appendix 3 of this report shows what the peeling paint looked like at the time of the auditors' visit. In another example, HPD claimed that an owner had promised to repair a violation--a missing lower window sash--at 16 Old Broadway in Manhattan. The ER2 Form HPD submitted to us as documentation indicated that windows were missing on two different floors of the buildings stairway. The ER2 form also indicated that the owner had promised to start work on December 23, 1994. It also contained the statement, "CW [Completed Work] as per tenant." However, when the auditors visited the site, the window still had not been replaced, as evidenced by photograph number 2 in Appendix 3. Perhaps the owner repaired one of the windows but not the window cited in the violation. In another example, HPD provided us with a photocopy of a work order for the correction of a peeling lead paint condition in the rear center room of an apartment at 759 Monroe Street, Brooklyn. The violation in our sample was for a peeling lead paint condition in the ceiling and west wall of the apartment's hallway, not the rear center room of the apartment.

In another example, HPD provided us with a photocopy of an ER2 Form for a number of different emergency conditions, including peeling lead paint, throughout an apartment at 2129 Amsterdam Avenue. According to the ER2 Form, the owner had promised to start work as of November 8, 1993. The verification was the simple statement on the ER2 Form "CW [Completed Work] as per tenant." We do not believe that this ER2 Form proves that the violation that was part of our sample--a water leak in the bathroom ceiling--was corrected by the landlord since our observations and discussions with the tenant in February 1995 found that the leak still existed.

For 34 violations of the 67 discussed by HPD in its response, HPD assumed owner compliance based on an owner's promise to start work without any verification that the work had been completed. We do not believe that HPD's claim that their records of landlords' verbal promises to begin to start work by a certain date (without verification) is credible evidence the work had ever been started, and it certainly does not show that the work had ever been completed.

For example, at 1030 Cauldwell Avenue in the Bronx, a violation for peeling lead paint was part our sample. According to HPD's ER2 Form, the owner had promised to start work to correct this and several other emergency conditions in the apartment on March 10, 1994. According to the ER2 form, the "Tenant has no telephone number." HPD also claims it sent a letter to the apartment address advising the tenant that the owner had promised to start work, and asking the tenant to call HPD if the work was not started by the date indicated. HPD further advised the tenant that if the tenant does not call HPD within 10 days after the start date indicated, "HPD will not take any action to make the repairs." HPD is assuming the violations were corrected by the landlord since the tenant has not reportedly called HPD since then. However, according to photograph number 24 in Appendix 3, the peeling lead paint condition still exists in the apartment. (HPD's violation database indicates that this violation was the 692nd violation issued for this 16 unit building!)

In another example, HPD claims that an owner promised to start work repairing a cascading water leak in an apartment at 300 West 142nd Street, but, according to HPD, this could not be verified because the tenant had no telephone number. Based on this, HPD claims we were mistaken to count this as an uncorrected violation in our sample when we visited the apartment, saw the violation still existed, and took photographs of this condition, as shown in photographs 29 and 30 of the Appendix 3.

HPD also claimed that a violation for a broken or defective wasteline at 219 West 121st Street in Manhattan had been corrected because an owner promised to start work (no date was provided), and a letter had been sent to the tenant to that effect. However, it can clearly be seen in photograph number 7 that the violation still exists.

In another example, HPD claims that the violation in our sample had been corrected because an owner promised to start work correcting peeling lead paint on the walls, baseboard, radiator, and window frames of the northeast room of an apartment at 252 West 72nd Street. However, the violation in our sample referred to a lead paint condition in the kitchen of the apartment, not the northeast room. Incidentally, there was no indication on the ER2 Form that HPD provided showing that any attempts had been made by HPD to contact the tenant to verify that the work had been done. In a similar example, HPD claims that a peeling lead paint condition on the entrance door to the southeast room of an apartment at 695 St. Nicholas Avenue was corrected because the owner promised to start work on February 15, 1994 to correct this condition. According to the ER2 Form, attempts to contact the tenant were unsuccessful. However, the violation in our sample (which was the 1,135th violation for this building address on HPD's database) was for a lead paint condition on the kitchen door and frame, not the southeast room of the apartment. A similar problem existed at 780 Macon Street in Brooklyn. According to HPD, the peeling lead paint violation was corrected because HPD's records indicate that the owner promised to begin work to correct several emergency conditions in the apartment on July 22, 1993. However, the violation in our sample was not listed among the conditions the owner promised to start to repair. In addition, photograph number 1 in Appendix 3 shows what the auditors observed when they visited the apartment in February 1995.

For 6 violations of the 67 HPD discusses in its response, HPD included referrals to the Department of Health as instances where violations were corrected--even if the Department of Health never made the corrections. In calculating its 89 percent correction rate, HPD counted 6 violations for rodent infestations as "corrected" even though, according to HPD, these violations had merely been "referred" to the Department of Health. When we visited the apartments where the violations were cited, the tenants told us that the rodent problem had not been corrected.

In summary, the "evidence" that HPD gave us to prove that the violations were corrected was riddled with inaccuracies and false assumptions. Our on-site observations and discussions with tenants indicated that 43 percent of the violations in our sample had not been corrected, HPD's "records" notwithstanding. We stand by that finding.

Agency Response: HPD, in its response, stated that:

"This alone, however, does not provide a true picture of our overall effectiveness. If for the purpose of comparison we factor in a 99 % correction rate for heat violations, which account for approximately one-third of all C violations issued, we arrive at a 92 % overall effectiveness rate."

Auditors' Comments: First, the 99 percent correction rate for heat violations HPD cited in its response is unsubstantiated. HPD does not measure the violation correction rate for any types of violations.

Second, as described earlier, even if 90 percent of the heat violations listed had eventually been corrected, and 50 percent of Class A and Class B violations were corrected, based on the violations listed on HPD's database as of July 1994, the overall correction rate would be 53 percent--lower than the correction rate we measured for the immediately hazardous maintenance and repair violations analyzed in the report.

Lead Paint Violations

Agency Response: Regarding lead paint violations, HPD stated that:

"The audit's analysis of lead settlements falsely implies that failure to correct 555 lead violations will lead to increased City liability for lead poisoning claims. In fact, 555 violations such as those covered in the audit are placed [issued] when there is no lead poisoned child under 7 years of age occupying the apartment. These are not the cases in which the City has experienced liability."

Auditors' Comments: The draft of this report incorrectly established a link between the increase in the number of claims and settlements for lead paint cases and the high number of lead paint violations in HPD's database. We agree with HPD's response and have changed the section of the report to more clearly distinguish between the "555" lead paint violations on HPD's database, and the lead paint cases in which the City has experienced liability.

Remedies for Tenants Living in Hazardous Conditions

Agency Response: In regard to our recommendation that HPD notify tenants of tenants of their right to sue landlords to get hazardous conditions corrected, HPD stated that:

"While we believe that most tenants are aware of their remedies under the law to get correction, it would be helpful to remind them of this. We will consider advising tenants who complain about non-emergency conditions that they have other remedies. The implementation of the Premisys computer system in two years would make this recommendation feasible."

Auditors' Comments: Contrary to HPD's assertion, we surveyed the tenants we visited, and most tenants living in apartments with uncorrected immediately hazardous housing code violations (not just non-emergency conditions) did not know their legal rights to take landlords to Housing Court to obtain court orders to correct the violations. We believe that our recommendation, that HPD develop a printed flyer or booklet that would be handed out to tenants when inspections are performed, is feasible at the present time, and that it does not require the installation of a new computer system to accomplish.

Decrease in Inspector Productivity

Agency Response: Regarding the steep decrease in inspector productivity over the past ten years which was depicted in Chart 2 on page 7 of the report, HPD stated that:

"The audit is misleading in simply claiming that inspectors are less productive without investigating the different nature of the inspections that are currently being performed.

"Prior to the major decrease in inspectorial staff as a result of State budget cuts in 1991, our inspectors performed a wide variety of inspections, including all non-emergency complaints. Following the budget cuts, Code Enforcement has changed its focus and mission to inspect primarily emergency conditions. These inspections are more time consuming and consequently reduced the total number of inspections a team could perform in a day. However, some portion of the seeming reduction in inspections results from a bookkeeping change: in the past, when a complaint generated an inspection of an apartment and a public area, two inspections were counted. In an effort to tie the number of inspections to the number of complaints, inspectors were instructed to report multi-area inspections as one.

"Finally, code enforcement inspectors perform a significant number of court ordered and housing litigation inspections as part of the overall code enforcement and litigation process. Each inspection, regardless of the complexity or the total number of areas actually seen, is counted as a single inspection. These inspections also take more time to complete. The number of these inspections has not decreased substantially with the number of inspectors. Court ordered and housing litigation inspections have decreased 27 % since 1989, while the number of inspection visits has declined 57%. Therefore, while total productivity has gone down, it is only because HPD has focused on the most important inspections. The chart below illustrates the point that the amount of time devoted by Code Enforcement to these inspections has almost doubled over the last six years, from 7% to 11%."

Total Field Inspection Visits

Inspections for Court and Litigation

% of Total

1989

409,000

26,590

7%

1990

320,000

24,426

8%

1991

293,000

23,394

8%

1992

194,000

22,729

12%

1993

172,000

20,735

12%

1994

175,000

19,287

11%

57.2% Decline

27% Decline

Auditors' Comments:

We contacted the cities originally surveyed and asked them about the number of inspections performed per day by their inspectors. As indicated in the table on the following page, these cities reported that their inspectors conduct more inspections per day than HPD's inspectors.

Chart 4Housing Code Enforcement Inspections in U.S. CitiesNumber of Inspections Per Inspector Per Day

Baltimore

13

Chicago

14

Philadelphia

10

Pittsburgh

12

New York

7

Because the primary objective of our audit was to determine whether HPD is effectively enforcing the Housing Code, we focused on the outcome of HPD's code enforcement efforts, rather than the efficiency or productivity of HPD's inspectors. However, we did note the drastic drop of inspections and reinspections performed per $1,000 budgeted to Borough Code Enforcement offices for personnel over recent years. For this calculation, we counted all inspections and reinspections that were reported by HPD in the Mayor's Management Report. For the amounts budgeted, we used the budget codes for the personnel assigned to Borough Code Enforcement Offices, where most housing inspectors are assigned. The personnel budget for the Borough Code Enforcement Offices is separate from the budget for those inspectors assigned to the Housing Court. Therefore, while we counted all inspections and reinspections, we did not include the portion of HPD's budget for housing code inspectors permanently assigned to the Housing Court. As a result, HPD's analysis of the decline in inspections overall versus the decline in housing court inspections is unrelated to the drop in productivity we cited in the report.

Notes

An investigation done by the Comptroller's Office of Policy Management estimated that 40 percent of correction certifications submitted to landlords by the due dates are false.